violation, that has to do with the burden of proof, because in a show-cause hearing that the respondent bears the burden of finding that there is no violation, we, the commission, will be voting on whether he has met that burden of showing that there is no violation. and that is what requires the three-vote majority. on the flipside, when we're handling something pursuant to chapter 3, we are voting to determine if there was a violation and therefore we need a majority vote for that. so that is why my understanding that we have those two different standards in terms of whether it's three commissions voting for or three commissioners voting against. were there any comments from the public that caused the

commissioners to have additional questions or comments about how things should be addressed? is there a motion to adopt decision point 2 subject to the following amendments: 1, to change subsection 2d3 and make that subsection 2d2 and flip it with what currently exists as 2d? >> i'm lost. >> commission renne's

suggestion and to add email language to subsection 2c2. other amendments that were proposed? is there a motion to adopt decision point subject to those changes? >> so moved? >> second. >> all in favor? >> aye. >> opposed? hearing none, the motion passes. decision point 3 has do with chapter 3. any comments from the commissioners on decision point 3? >> i think we might want to make the same change that commissioner renne suggested earlier in 3b, reversing 2 and

3. >> agreed. >> b2 would become b3 and b3 would become b2. >> right. >> any other issues? i had a couple of questions. do we have any provision for the situation where something comes to us originally, we dismiss it, and then the same complaint goes to sunshine and

comes through their process? >> we have not addressed that. >> okay. or visa versa, if it comes through sunshine and they don't like that and they come directly to us. it would be, i think, helpful to have language that would prevent that. because i don't think we want to handle the same complaint twice or have it go through both processes, if we don't have to. i mean, are there pitfalls there that i am missing about that? >> just one comment, chair. i think it would be difficult in the ethics commission regulations to address what the task force would do in terms of what it would hear, even if it

is something that has been considered by us already. i think that may not be received necessarily well. >> and we couldn't enforce that anyway. >> right. at least one of those two eventualities we may not be able to address in these regulations. >> but what we could do is say that we will not take up a referral from the task force that has already adjudicated pursuant to chapter 3. >> right. right as a practical matter if we already decide there had is nothing there, even filed directly with us and went to the task force and got a referral back to us, even though they have a lesser burden of pervasion, i persuasion. >> theoretically it's a little easier for them the second time around, but we'll probably come

to the same place. >> maybe it's not worth putting in. i agree it does seem unlikely. i had a couple other questions. in a5, i think this is a little inconsistent with a2, but maybe i'm reading it wrong. but i understand that in chapter 3, we are handling complaints alleged violations of the ordinance by elected officials or department heads, but also those that come directly to us and don't go through the task force. is that right?

>> i think this language was included just to make sure it was clear that any referral from the task force or in the off chance by the supervisor of record. this is not something that would come directly to the commission. >> but a referral, where the order of determination is a willful violation of a department head or an elected official would still go under chapter 3; right? >> correct. >> and this is just referring to allegations of non-willful. >> okay.

>> so katherine is right in one aspect that the potential exists and the other part of this there was a concern that if something that staff was not a party of interest, if you will and a referral. so the only time that staff would be a party of interest is if we initiated the complaint and therefore, the executive director wouldn't have a role apart from providing you a legal recommendation on what was presented to him. that shows the intent of this. so that if a referral came alleged a willful violation against an official, staff would through the executive director through staff would present his legal findings, but would not be an arguing party, if you will at the hearing. >> i see. okay. i think i understand. i mean, anything that falls under a1 [#2*-/] would not be a referral by definition.

right? okay. my last question had to do with the scheduling of the hearing. and i know we talked a lot about this at the last meeting. having had to work on -- and commissioner studley knows, having to work on the agenda and figure out how to fit things in, i think it would be helpful to add a caveat about when these things get scheduled. if we could add something, like, at the next regular meeting, if practical, it would be helpful. it should be our intention to do these as quickly as possible. in the event that we have an unexpectedly large agenda for a particular meeting, we may not

be doing the respondent or the complainant any favors by adding them on at the end of a long night. so i think something like that might provide the commission with necessary flexibility. >> i think that flexibility makes sense, given that some of our responsibilities are seasonal or quite urgent. i would just suggest that we consider, unless impracticability impracticable. >> i think that is good. my objection from the staff?

public comment on chapter 3? >> richard knee. just really briefly in 3 ii d 1, this decision point would set a maximum of ten pages on executive director reports and recommendations and complainants and respondent's responses there, too. ten pages can be a lot of things and in order to to speed the process, if you will, i would recommend defining whether the contents of the pages should be single or double-spaced. i believe that issue came up during the mirkarimi hearing. also whether the page was printing on both sides count as one or two pages?

>> david pillpa, and that is already covered in chapter 4 page limitations and format requirements. but it's a good idea. on chapter 3, i have two points. >> you don't have to be so snaky. >> sorry for the snark. >> but we're impressed. >> following the investigation, the report from the director, we'll talk about that in a second under chapter 4, with access to complaints and related documents, but i believe it's the intent that that report and recommendation be the only document that is available relative to the investigation at the time of the hearing. so i think that really needs to be

comprehensive, conclusive. whatever attachments are material to the investigation for the review of the commission or the public should be incorporated or referenced, but that is it. i don't think people should say, okay, you are making some reference to some other thing. i would like that prior to the hearing. it's either whatever is out there needs to be out there for everyone to view, and nothing else. so i just want to be clear on the content of that report and recommendation, because i think that in the event that we ever get to this, that may be relevant. also i think we need -- i have read this several times, but i keep re-reading the matters heard under this chapter for both chapters 2 and 36789 we may need a separate document that just has a flow chart of some sort that says whether things are in the chapter 2 bucket or the chapter 3 bucket, because i'm sure there will be confusion about

whether it's a willful violation, an allegation of a willful violation by a department head who is or isn't an elected official. it gets complicated and i think people need to know which presumption there is and therefore, which chapter it's under. i will leave at that for the moment. i'm sorry, did i apologize for being snaky? >> i think for education purposes it would be good to have something on the website that people can easily figure out okay if this happens then i go down this path? >> yes, so it's clear to everyone. >> any additional comments from the commissioners based on public comment? >> i do have one question.

he i think the question was raise what is your address happens if we deadlock? the way i'm reading this as drafted if there are not three votes in favor, then the burden has not been met under whatever chapter 2 or 3. so i just wanted to clarify whether that is the intent. so we're not really going to come up with that scenario of a dead loch.e lock. just three favors in favor of whatever chapter we're under. is that the intent? >> yes, it was the intent. >> if there is hypothetically some meeting where it's 2-2, you could form a [pha-eurpt/] to continue the matter until there is a exeter where there is five people.

>> okay. so even if there is a single meeting with a deadlock, there are still options for the commission to dispose of it in a more satisfactory manner. >> thank you. >> can i just follow-up on that? >> brief life? >> if the event that you happened and then deadlocked and toned the matter for a decision, i think you should have some provision in here that an absent commissioner must viewed the proceedings and verified that they are familiar with the materials and evidence and prepared to take up the matter. i think to just assume all of that would happen in the absence of a reg requiring it is potentially problematic. i can see that scenario playing out. i want to preserve the commission's options, but i can

see that playing out rather than saying everybody is here, let's go with the hearing. oh, but one of our members took ill this afternoon. why don't we just continue the entire hearing? you want to have options either way. >> i think that is a reasonable suggestion unless our standing rules already have those requirements for as a standard for a commissioner being able to participate in something for which they were not at the meeting. does anybody know if we have such standard provisions? >> i would just say at least from the city attorney's office involved in situations like that, in which a proceeding in which not all members of commission have been in attendance. we have consistently advised if that person joins later in a subsequent hearing that they do

review the record. i'm not sure that has been written down anywhere per se, but i would just say obviously in the regulations we're trying to cover all grounds, but not necessarily covering everything that could come up. that is generally what we advise commissions. >> i'm sure staff would concur with that recommendation. >> i don't recall if it was mandated or we did it out of a sense of doing things correctly? >> we have made representations and have made them make representations on the record. so we do have them in the regs? >> in our current enforcement

regs, there is a sentence regarding certification for the commissioners on that and we could just use the same language. it's actually on page 14 of the attachment b, the last sentence. >> fine. >> where? >> the last sentence of section b on page 14. >> i think that would be helpful and i know we have utilized that because i was one of the people who had to certify. >> i think we should add that.

we would want to hated to chapter 2 as well, wouldn't we? >> shouldn't we put in chapter 4? put it in chapter 4? any views from the commissioners to put that in chapter 4? we can move to that in chapter 4. then i think the changes that are being proposed for section

3 are to flip section 2 iii b and to add "unless impracticable after next regular meeting," in 1b1. is there a motion to adopt decision point 3 with those changes? >> so moved. >> we took public comment on that section. >> is there a second? >> second. >> all in favor? >> aye. >> opposed? motion passes. chapter 4. aside from adding the language from page 14 of attachment b,

any other comments from the commissioners on decision point 4? >> i have a question. >> yes. >> taking the language from page 14 of attachment b, read in entirety that presumes there may be commissioners that may miss the hearing and if the hearing takes one day and all of the commissioners are here, i don't think you need to make that affirmation, because you were here, you know? with witnesses. so you can put it in the way it is and it doesn't really do any harm. you just have to make that affirmation, even though you were here for the whole hearing. you could put a header in that says any commissioner not present for the entire proceedings shall and then put the language in there.

i'm not trying to complicate things. it's just adds a personal level of procedure, that you don't necessarily need to go through, if everyone is here. but it won't take that long for everyone to do it. >> i think it's a good point. i certainly don't want to add additional, unnecessary procedural requirements. where would we add that? >> i would take just the last sentence of the paragraph, that starts, "each commissioner who participates." >> now you are looking at attachment b? >> right. >> page 14, section b, the last sentence. so that would read, "each commissioner who participates in the decision, but has not attended the entirety of the hearings, shall certify on the record that he or she personally heard the testimony,

et cetera." >> okay. i think that is good and where would we put it? >> section 4 i think i would just add at the end >> j? >> yes. >> >> just make it j and then you don't have to re-number the other sections. there is a particular need for chronology here. >> any other comments on

decision point 4? >> just a comment, it may be unnecessary, but under the ex parte communications it does not preclude communication between commissioners. i know that there are other provisions that may take care of that, but i'm just curious as is it intended one commissioner could talk to another in advance of the hearing, concerning the subject matter? when the commissioner can't talk to a staff person, can't talk to an executive director? >> i'm just curious. >> is there nothing in the law that would preclude you from speaking to and one other

commissioner. obviously beyond that is a seriatim problem. when that word poped into my head, i swore i wouldn't get it out, but i did. >> i don't feel strongly about it, if the commission wants to to prevent commissioners from talking amongst themselves. i don't know that that's necessary, but i wouldn't object. >> i was looking at it more from what the public comment

might be, if they think that the ex parte communication should be included, no communication between the commissioners, even between one commissioner and another prior to the hearing? seeing that we're excluding almost everybody else. >> right although we were excluding anybody that would come before us and would be presenting evidence or making argument. >> the only circumstance -- excuse me, sorry. the only circumstance i could see would be and you and commissioner studley whether the chair and vice-chair need to talk prior to a hearing about the running of whatever matter is going to come before

the commission and whether we should place whether that would be a limitation on the chair and vice-chair, just talking about how to conduct the matter going forward. >> that is a good point. >> so i wonder if that is taken care of by the fact that relates to the merits of the complaint and excludes scheduling. >> right. so perhaps, yes. >> so perhaps that is anticipated? >> yes. >> okay. >> this is very fussy. i hate editing as a group, but except for "communications generally and committed between a court and party, communications are not typically committed." odd raiding. >> conducted?

>> that would be better. >> the sort of thing we caught count on mr. renne for. >> any other proposed changes to chapter 4? public comment? >> i'm still richard knee. in the previous draft of the decision points, there was a provision declaring that the commission would not be required to televise portions of its meetings held in closed session or otherwise required to be confidential. unless it's escape my eyeballs the current draft does not contain that language and i would like to see the subject re-introduced, but i suggest that the cosi